Hughes v. Nicklas

McSherry, J., delivered the opinion of the Court. The single question involved in this appeal is, what estate did Jane Shaw take, under the will of George Ackerman, in certain leasehold property ? It is insisted by the appellant that she took an absolute interest therein; whilst the appellee contends that she was entitled only to a life estate, and that upon her decease the remainder passed to Christiana Snyder. The will of George Ackerman must determine this controversy.

It bears date May sixteenth) eighteen hundred and thirty-one, and was admitted to probate October the twenty-eighth, eighteen hundred and thirty-four. The only clauses which have any reference to the question before us are in the following words: “And to my adopted child, Jane Shaw, whom I have raised from infancy, and who now lives with ⁴⁸⁶ me-, I give and bequeath all my property, consisting of houses and vacant lots, situate on the west side of High street, between York and Pitt streets, in the City of Baltimore, during her natural life, with remainder over to the heirs of her body, if she should have any, but in case she should die without such heirs then the said remainder to my cousin, Christiana Snyder, widow as aforesaid, to her and her heirs forever.” "Ancl I give all the residue of my property, of whatsoever name or nature, to the said Jane Shaw, without limitation or restriction,” &c., &c. It is conceded that the property referred to in the first of the two clauses quoted was leasehold property. Jane Shaw married William Campbell.

She died in eighteen hundred and eighty-six, without ever having had issue. She left a last will and testament whereby, after making small bequests, to other persons, she gave the residuum of her estate to John W. Hughes, a grandson of her deceased husband, and she appointed him executor. He is the appellant in this case. Christiana Snyder also died leaving a will by which she gave the residuum of her" estate to her grand-children.

The appellee is administrator d. b. n., c. t. a. of her estate. It has been argued that the intention of George Ackerman, apparent on the face of the will, was to give Jane Shaw merely a life estate in the leaseholdproperty, and that this intention must control the construction to be placed on the language used in making the bequest of that property to her. It is undoubtedly true that a testator's intention, when legally manifested, will be given effect to, unless it violates some fixed principle of law, or would, if gratified, break down some settled rule of property, or unless it be defeated by the use of technical words whose meaning, when they are found in wills, is inflexible and unvarying. ‘ For instance, no matter how clear may be the intention to create a ⁴⁸⁷ perpetuity, it cannot be gratified, because forbidden by law ; and even though the intention to give but a life estate may be perfectly evident, yet, if, in attempting to create it, words have been employed which have invariably been held to carry the fee, the fee and not a mere life estate, will pass. There is, perhaps, no rule of property more deeply rooted in the jurisprudence of this State than that which is known as the rule in Shelley’s Case..

It is a rule of tenure which is not only independent of, but generally operates to subvert, the intention; and so firmly is it, with its qualifications, established here, that, as said by this Court in Shreve and Wife vs. Shreve, et al., 43 Md., 394 , “nothing hut an Act of the Legislature can strike it out of our system of real law.” The definition of the rule given by Mr. Preston, (Preston on Estates, vol. 1, p. 263,) adopted with slight modifications by Chancellor Kent (4 Kent Com., 215,) and quoted with approval in Ware, et al. vs. Richardson, 3 Md., 544 , is so familiar that it need not be repeated in this opinion. If the subject of the gift to Jane Shaw had been real estate, she would have taken, under the rule, an estate in fee tail, which by the operation of our law of descents would have been converted into an estate in fee simple, notwithstanding the most positive and unequivocal declaration that she should take only an estate for life. But it is supposed a different result must follow in this case